Justice A.P. Shah, author of a recent and long-overdue verdict that decriminalised homosexuality, is among the 14 retired judges who have recently attacked certain death penalties awarded by the Supreme Court. With that the anti-capital punishment movement — if a small, highly educated group of writers, thinkers, jurists and NGOs can merit the description of a ‘movement’ — has received a fillip. The usual arguments against and in favour of capital punishment have been aired.
The debate goes back centuries: while all religions sanction capital punishment, they also display considerable doubts about it. Thou shalt not kill, say the commandments, while the Old Testament also contains its share of corporal punishments. Similarly, Islam, today often identified with corporal punishments, both justifies the death penalty and advocates other avenues of ‘justice’ whenever possible. Actually, almost all societies had the death penalty until less than a century ago.
Exceptions
There have been only fleeting exceptions: Kievan Rus, a medieval polity in Europe centred around Kiev (Russia) in the 10th-12th centuries; a short period in eighth century China; three full centuries, until the late 12 th century, in Buddhism-influenced Japan; some so-called ‘primitive’ cultures here and there. However, even the most ‘enlightened’ of rulers, such as Ashoka in India (who was not in favour of capital punishment), did not totally give up their right to impose the death penalty. Around 1800, for instance, about 150 crimes — including petty ones like shop-lifting — could be punished with death in England. Until recently, most states insisted on the right to award this extreme punishment, and sometimes more so under modern nationalism, where the state often claims a kind of supreme and monopolistic authority over its citizens.
As such, the current scenario — where more than half of all nation states in the world have abolished capital punishment — is totally unprecedented. Various reasons are given for abolishing the death penalty. Some — such as the argument that it is ‘unnecessary’ — are intellectually and ethically weak. Would it be OK to execute people if it was ‘necessary,’ and then who is the judge of its necessity? Some others — such as the claim that it actually leads to more crime and violence (based on a comparative study of U.S. states that have the capital punishment and those that have abolished it) — depend a lot on the irrigation of data, and can be questioned. Some other arguments — for instance, the claim that it brutalises everyone — are stronger and need to be considered.
Perhaps the strongest legal argument against capital punishment remains the one first made by the 12th century Sephardic scholar, Moses Maimonides, who noted that it is better to acquit a thousand guilty persons than to put a single innocent man to death. Given the history of prejudices that have influenced and still effect verdicts in even the best of legal courts, this argument is hard to dismiss.
And yet, it is one thing to say that one is against capital punishment, and another thing to legislate for its abolition from a position of authority (moral, legal, educational or social).
I, for instance, am against the death penalty or, for the matter, any penalty depriving a human being of something which cannot be restored to her. I believe that as a human being, no matter in the name of what authority (state, God etc), I have no right to take from someone what I cannot return to the person. And, by the same token, I have every right to insist that I be allowed to keep undamaged what cannot be returned to me.
Beyond the personal
Unfortunately, this personal conviction and ethical stand is not sufficient in the case of capital punishment (or any other kind of ‘legal’ chastisement in a society). That is because, by definition, capital punishment and all ‘legal’ punishments are not personal matters. More than that, they have been ‘constituted’ to take the problem of justice out of ‘personal’ contexts. Law comes into existence largely in the bid to step between individual and individual, so that an endless chain of personal retributions can be broken by a single public enactment of ‘justice.’
In order to ban capital punishment in a place like India, it is necessary to create a public ethos that believes that justice can be done without officially murdering some people. Mere legislation, personal conviction or elitist indignation is not sufficient. Unless the vast majority of Indians believe that capital punishment is not necessary for justice, its abolition will lead to more alienation from the state, greater scepticism of the law, and various kinds of illegal vigilante-style ‘justice’.
Necessary condition
In fact, in order to abolish capital punishment, one needs to create a broad public feeling of trust in the state. This is the one factor that is noticeable in states like Denmark and Norway, which have long abolished capital punishment, and often lacking in nations like the U.S. and India, which seem unable to do so. When I first moved to Denmark, I was surprised to see that not only milk came in cartons marked ‘Milk from Danish cows’, but even photographs were returned in envelopes bearing the stamp ‘Developed in Denmark.’ For citizens of a country that shows very few signs of jingoistic nationalism, Danes are still convinced that they can trust their own society and state — even when the Danish government, as was the case during the Iraq war, obviously manipulated facts. This is not the case, except among some jingoistic nationalists, in places like India and the U.S. What the ordinary Indian feels for the state is not trust but fear, which is at least partly a colonial heirloom. The potential — however carefully used — of the state to deprive a citizen of his life is an aspect of this postcolonial heritage of fear/ power.
There is much to be done in public spaces in countries like India before we can turn our personal convictions into a humane legal system, where the death penalty will be abolished because it will not be considered necessary for justice. Justice Shah has done his job as a jurist, but it will need more than the congratulatory drumming of international NGO-types to make it bear fruit, not further thorns.
Khair’s new novel is How to Fight Islamist Terror from the Missionary Position.
